Legal opinion on DSA Elections

EX PARTE : DRESSAGE SOUTH AFRICA

IN Re. : ELECTION OF DRESSAGE COUNCIL EXECUTIVE

COMMITTEE

________________________________________________________________

MEMORANDUM

1. The CONSULTANT is DRESSAGE SOUTH AFRICA, a voluntary association with corporate identity separate from that of its members, with the right to own movable and immovable property or otherwise and who may sue or be sued in its own name and having perpetual succession.
2. I have been requested to provide an opinion as to whether Mr Tim Marsland (“Marsland”) has lawfully become the President of the CONSULTANT on 11 April 2016. The same question is posed in relation to the other persons, including the vice-president, that has become officials of the CONSULTANT on 11 April 2016. This question is posed with the background that no voting took place as Marsland was the only nominee for President of the CONSULTANT.
3. The same holds true for the other officials I have been briefed with the following documentation:

3.1 the Constitution of the CONSULTANT;

3.2 the Agenda for the Annual General Meeting of the CONSULTANT;

3.3 the Minutes of the Annual General Meeting of the CONSULTANT;

3.4 various “Nomination for office bearers and portfolio holders” of the CONSULTANT forms; and

3.5 the Constitution of the South African Equestrian Federation (“SAEF”).

4. As part of the Agenda for the AGM, the following items were to be dealt with:

4.1 “Acceptance of nominations for Office bearers and Portfolio Holders“; and

4.2 “Voting if required.”

5. From the minutes of AGM it is evident that:

5.1 for each respective Portfolio, only one person was nominated per each such respective portolio;

5.2 for each office bearer position, only one person was nominated per each such office bearer position;

5.3 no objections were raised to any person nominated for either a Portfolio of Office bearer position; and

5.4 no objections were raised to the absence of a formal voting process.

6. In terms of clause 11.4.8, the Dressage Council shall be elected in terms of clause 15 as read with clause 16. Clause 11, the clause dealing withthe AGM does not specifically deal with how voting is to take place at an AGM in general.
7. Clause 16 provides for the nomination process for Office Bearers and Portfolio holders and a voting process in the event that there is more than one nomination for any of the office bearing posts. In this latter regard clause 16.10 provides that where there are more than one nomination for any of the office bearing posts, such post shall be elected separately by ballot. The Constitution is expressly silent on what is the position if only one nomination is received per office bearing and portfolio post. Similarly the Constitution is expressly silent on whether a person receiving the most votes is elected to a specific position or whether some type of majority voting is required.
8. In the absence of a specific majority voting required provision, a person will be elected to an office bearing position by merely winning the most votes of the votes cast.
9. The purpose of a nomination and election process of office bearers and portfolio holders is to ensure an open and transparent process. As each member may only nominate one person for any one office bearing position, which nomination must be seconded, and in the absence of a further nomination for such post, it is implicit that such single nominee already holds two votes.
10. In the absence of any objections relating to any nominee where there is only one nominee for a specific post, a voting process would prove to be inconsequential. All that such a person would require is one vote. In my view it is thus implicit in the Constitution that no voting is required where only one nomination for a specific post is received.
11. Even in the event that I am wrong in the above view, a constitutional convention has been created by past conduct to fill the apparent lacuna that exists in the Constitution. Such convention is to the effect that where only one nomination per specific post is received, no voting is required and the person so nominated is automatically deemed to be elected.
12. Nothing in the constitution of SAEF allows for SAEF to reconsider the elective process of the CONSULTANT. At best for SAEF it may inquire into the administrative affairs of the CONSULTANT and recommend corrective measures. SAEF may thus suggest a constitutional change to the CONSULTANT.

1 That being said, at most SAEF will be able to suggest that the CONSULTANT makes certain

constitutional changes. These changes will then be made and implemented with effect from the next elective process.

2 Oudekraal Estates (Pty) Ltd v City of Cape Town and Others 2004 (6) SA 222 (SCA) at par [20]; See

also MEC for Health, Eastern Cape v Kirland Investments (Pty) Ltd (Constitutional Court case no CCT 77/13) at par [101]

13. In this regard it must be borne in mind that administrative actions remain valid until it is set aside by a Court of Law. In this regard the Supreme Court of Appeal has said

“But the question that arises is what consequences follow from the conclusion that the Administrator acted unlawfully. Is the permission that was granted by the Administrator simply to be disregarded as if it had never existed? In other words, was the Cape Metropolitan Council entitled to disregard the Administrator’s approval and all its consequences merely because it believed that they were invalid provided that its belief was correct? In our view, it was not. Until the Administrator’s approval (and thus also the consequences of the approval) is set aside by a court in proceedings for judicial review it exists in fact and it has legal consequences that cannot simply be overlooked. The proper functioning of a modern State would be considerably compromised if all administrative acts could be given effect to or ignored depending upon the view the subject takes of the validity of the act in question. No doubt it is for this reason that our law has always recognised that even an unlawful administrative act is capable of producing legally valid consequences for so long as the unlawful act is not set aside.“2 [my emphasis] 7

“The essential basis of Oudekraal was that invalid administrative action may not simply be ignored, but may be valid and effectual, and may continue to have legal consequences, until set aside by proper process.”

14. The existing office bearers and portfolio holders may only be removed, in the event that it is contended that the elective process was constitutionally materially flawed, if it is reviewed and set aside by a Court of competent jurisdiction. Such office bearers and portfolio holders may thus lawfully represent the CONSULTANT and take such decisions and conduct such actions as they are constitutionally permitted to do until their elevation to their respective posts are lawfully set aside.

CHARLES E. THOMPSON

Chambers

Johannesburg

11 May 2016